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Case 1:05-cv-05093 Document 26 Filed 01/06/2006 Page 1 of 15
ROBERT DEMAR )
)
Plaintiff, )
)
v. ) Case No. 05 C 5093
)
THE CHICAGO WHITE SOX, et al. ) Judge Der-Yeghiayan
)
Defendants. )
MOTION TO DISMISS
NOW COME the defendants, Chicago White Sox, Ltd., ChiSox Corporation
(hereinafter the "Sox defendants"), At Your Service, Inc. and At Your Service LLC, by
and through their attorneys, Robert T. Shannon and James C. Vlahakis, and for their
state as follows:
I. Introduction
Plaintiffs bring a nine (9) count complaint against these the Sox defendants, as
well as SDI Security, Inc., Superior Ambulance and other "unknown" defendants.
Plaintiff, Robert Demar, alleges that on September 7, 2003, he was a patron at U.S.
Cellular Field, where he was watching a Chicago White Sox baseball game. Plaintiff
claims that he wanted to wait in his seat for after the end of a game before using the
restrooms because his alleged disability (polio and post-polio paralysis) prevented him
from standing for an extended period of time line with the post-game crowd that was
exiting seating area. After approximately ten minutes, plaintiff spoke with security
staff. Plaintiff alleges that the Sox defendants violated his rights under the American's
with Disabilities Act ("ADA") when he was removed from the ballpark by security staff
and presented to medical personnel for evaluation after he complained that he could
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As discussed below, plaintiff's ADA claim fails to comply with FRCP 8(a)
defendants' conduct that allegedly violated the ADA. Alternatively, plaintiff should be
In the alternative, to the extent that this Court believes that plaintiff has stated
sufficient allegations to place defendant on notice of his claim(s), plaintiff has failed to
state a claim upon which relief can be granted. As an initial matter, plaintiff has not
alleged that the ballpark lacks an adequate number of bathrooms. Second, plaintiff
has not alleged that the ballpark lacks ADA compliant bathrooms. Third, plaintiff has
not alleged that the layout of the ballpark is not ADA compliant. Rather, plaintiff
appears to argue that the staff should not have removed him from the ballpark after
the game for a medical evaluation. Thus, plaintiff appears to suggest that but for the
alleged tortuous conduct of park staff (who allegedly removed him from the ballpark
against his will), he would have been able to accomplish his goal of going to the
bathroom without waiting in line with the exiting crowd. Put another way, plaintiff
has not alleged that his injuries were caused by the layout of the ballpark or the
number of bathroom facilities. That being the case, plaintiff's complaint amounts to
nothing more than state law tort claim for false imprisonment and/or battery, and
there is no reason for this Court to then burden itself with a complex, yet
As for plaintiff's state law claim, his claim negligent infliction of emotional
distress claim, as well as his remaining state law claims, are preempted by the Illinois
Human Rights Act. Alternatively, plaintiff's state law claim for false imprisonment
should be dismissed because plaintiff has pled himself out of court and has otherwise
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failed to state a cause of action. As an initial matter, while plaintiff admits that he
informed ballpark staff that he could not walk and that he could not stand, he asserts
that he was falsely imprisoned after the staff presented him to an ambulance for
claims, which allege physical abuse, handcuffing, detention and booking, plaintiff's
contact incidental to securing review by medical staff, following his own claim that he
could not leave his seat because he could not walk or stand. As discussed below,
these allegations do not rise to the level of an imprisonment, and if they do, such
actions were certainly reasonable given the statements plaintiff made to the
defendants.
This Court has previously identified the standard of review for a 12(b)(6) motion
to dismiss as follows:
Hathaway v. New Dimension Center for Cosmetic Surgery, 2005 WL 743085, *1 (N.D.
Ill. 2005).
U.S. Cellular Field, where he was watching a Chicago White Sox baseball game.
(Complaint, para. 10). At that time, plaintiff alleges that he suffered from a disability,
in that he suffered from polio and post-polio paralysis, that substantially limited his
ability to stand upright, and walk. Id. at para. 17.1 At the game, plaintiff remained in
his designated seat so that the lines at the restrooms located at the ballpark could
dissipate. Id. at para. 19 21. Plaintiff alleges that the restroom facilities existing at
the ball park, could not "quickly" accommodate his need to use the restroom at the
end of the baseball game. Id. at 20. Plaintiff claims that after ten (10) minutes of
waiting, park security staff unlawfully removed him from his seat and took him to a
waiting ambulance. Id. at 26, 27. Despite the fact that plaintiff did not want medical
1
For the purposes of this motion, the Sox defendants will assume, as they must, that
plaintiff is truly disabled under the ADA.
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attention, he was then transported to Mercy Hospital at the direction of security staff.
Id. at 28.
Count I purports to be a Title III ADA claim against the Sox defendants, alleging
disability. Count II is also brought against the Sox defendants and purports to be an
claim for "injunctive relief" based upon the same allegations. Count III purports to be
a state law assault and batter claim, brought against all defendants. Count IV
purports to be a state law false arrest claim, also brought against all defendants.
Count V is a state law negligence claim against the Sox defendants, the At Your
Service defendants and SDI Security. Count VI is a state law negligence claim directed
against Superior Ambulance. Count VII is state law negligence claim directed at
emotional distress claim against all defendants. Count IX purports to be a claim for
V . Argument
While plaintiff has draft his complaint with references to the ADA, is important
to highlight that plaintiff has not alleged that he was denied access to the public
facility. At the same time, plaintiff has not alleged that the ballpark fails to provide
adequate access to and from his assigned seat. More importantly, plaintiff has failed
to allege that the ballpark fails to provide handicapped accessible bathrooms. In fact,
plaintiff has not alleged that the ballpark fails to contain enough handicapped
accessible bathrooms, nor does challenge the adequacy of these facilities per se.
Indeed, plaintiff does not even challenge the adequacy of these restroom facilities or
his ability to use same at any point during the baseball game. Rather, plaintiff
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vaguely speculates2 that the line for restrooms at the end of the game did not provide
Plaintiff also fails to make allegations supporting his broad claim of intentional
discrimination under the ADA. In fact, plaintiff s allegations make clear that the post-
game lines impact all patrons who chose to wait to go to the bathroom at the
conclusion of a ballgame and not simply individuals with qualified disabilities. That
being the case, plaintiff has not set forth any facts or allegations that he has been
treated any differently than a non-disabled and/or intentionally singled out for
differential treatment based upon his disability. See, e.g., Assn. for Disabled
Americans v. City of Orlando, 153 F.Supp.2d 1310, 1320-21 (M.D. Fla. 2001)
(dismissing claims of handicapped who presented no evidence that they were excluded
in any way by the allegedly non-compliant aspects of the sports arena and theatre
varying degrees).
In summary, plaintiff does not set forth sufficient allegations, under any
physical layout that represent a violation of the ADA, or what it is about the
accommodations that were afforded that were unreasonable. To the extent plaintiff s
removal from the ballpark may state a claim under state law, it does not state a claim
2
We say "speculate" because plaintiff does not allege how long the lines were, how many
people were in the lines, how quickly the lines were moving or the absence of any alternative
opportunity to "sit" in the restroom concourse area. Indeed, plaintiff's belief is apparently
based upon previous, yet undisclosed, trips to the ballpark, but he fails to allege whether the
attendance and circumstances present on those nights were similar to September 7, 2003.
3
As noted above, defendants arguments are based upon the fact that plaintiff has raised
no allegations which call into question the physical structure of the ballpark.
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because he has failed to properly place defendants on notice of the claim he makes
and the relief that he purports to seek. As demonstrated below, plaintiff s broad,
generic allegations violate FRCP 8(a)(2). Rule 8(a)(2) requires that a complaint contain
"a short and plain statement of the claim showing the pleader is entitled to relief.
Despite the relaxed pleading standards that govern Rule 8(a)(2), a plaintiff must still
plead "sufficient facts ... to allow the district court to understand the gravamen of the
plaintiff's complaint." Phelan v. City of Chicago, 347 F.3d 679, 682 (7th Cir. 2003)
(quoting Kyle v. Morton High School, 144 F.3d 448, 455 (7th Cir.1998). In other words,
a complaint must still "provide the defendant with at least minimal notice of the
claim." Kyle, 144 F.3d at 455 (quoting Jackson v. Marion County, 66 F.3d 151, 153-54
(7th Cir. 1995)). "For notice to be given, 'a complaint must at least include the
operative facts upon which a plaintiff bases his claim'" Id. at 455 (quoting Lucien v.
Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992) (internal citations omitted)). More
recently, the Seventh Circuit has held that while plaintiff's are not obligated "to 'plead
provide some grounds for concluding that he could possibly be 'entitled to relief.'"
Christopher v. Buss, 384 F.3d 879, 881 (7th Cir. 2004). See also Collier v. Rodriques,
1996 WL 535326, *3 (N.D.Ill. 1996)("plaintiffs are still required under notice pleading
requirements to present a short plain statement which puts the City on notice of the
Under this backdrop, and in light of the deficient and vague allegations in
plaintiff's complaint, it important to recap what the complaint does not say. See
Section V-A. Although plaintiff broadly claims in paragraph 46 that defendants failed
architectural barrier at the ballpark that impedes his ability to use the facility because
of his alleged disability. At the same time, he has failed to identify a single example of
the type of services in alternative settings that he claims he should be provided, and
fails to identify any section within the ADA regulations which requires that allegedly
disabled individuals need not wait in a restroom line effecting every other patron. And
as noted above, plaintiff does not allege that any aspect of the physical structure of the
ballpark impacts his ability to use the bathroom facilities during the game, let alone at
the end of the game when exiting the stadium. Again, to the extent that plaintiff
claims that staff removed him from the stadium, this does not amount to a claim
accommodate disabled patrons during the entire nine (9) innings of baseball. To the
during the ballgame, and concedes that the facility would have accommodated his
personal needs had it not been for the alleged tortuous actions of park staff. Indeed,
restroom facilities if his plan to remain in his seat had been allowed to run its course.
This is a simple tort claim under Illinois state law and if that is the case, the
unnecessary, burdensome ADA claim need not pre-occupy this Court any longer.
For these reasons, plaintiff should be required to replead his complaint to the
extent that this Court declines to dismiss it on the basis that it simply attempts to
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NIED ) and his related state law claims are preempted by the Illinois Human Rights
Act, 775 ILCS 5/1-101, et seq.4 According to the Seventh Circuit, [t]he IHRA
preempts all state law claims seeking redress for a civil rights violation within the
meaning of [that] statute. Krocka v. City of Chicago, 203 F.3d 507, 516 (7th Cir.
Intentional Infliction of Emotional Distress ( IIED ) claim that was brought within the
context of an ADA based claim, holding that the allegedly discriminatory conduct was
inextricably linked to [the plaintiff s] disability discrimination claim. Id. at 517. See
also Quantock v. Shared Marketing Services, Inc., 312 F.3d 899, 905 (7th Cir. 2002)
(holding that the IHRA preempts tort claims that are inextricably linked to
F.Supp.2d 681, 690 (N.D. Ill. 2003) (dismissing ADA based IIED claim as preempted
under the IHRA); Ulatowski v. John Sterling Corp., 2004 WL 1385829, *5 (N.D. Ill.
2004) (dismissing IIED, fraud and conspiracy claims based on preemption under the
IHRA); Johnson v. Chicago Bd. of Education, 2002 WL 1769976, *4 (N.D. Ill. 2002)
(citing cases and holding that the judge of this district have routinely dismissed
Illinois state tort claims particularly intentional infliction of emotional distress claims
for lack of jurisdiction when brought in connection with allegations of a civil rights
violation. ).
Here, plaintiff has alleged state law torts which relate to a what should be a
state law claim under the IHRA. This Court has applied Krocka to dismiss an IIED
claim brought in the context of an ADA claim on the basis that there was no
4
Section 5/8-111(C) of the IHRA provides that [e]xcept as otherwise provided by law, no court of this state shall
have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this act. Section 5/1-
102(A) of the IHRA specifically prohibits discrimination against a person because of his or her . . . physical or
metal handicap . . . .
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independent basis to support Plaintiff s IIED claim other than the alleged
Co., 2005 WL 831296, *3 (N.D. Ill. 2005). In so finding, this Court concluded that
Plaintiff s IIED claim is inextricably connected to the protections provided by the IHRA
As noted above, numerous courts within this district have dismissed IIED
claims under the preemption clause of the IHRA. For example, Judge Darrah
claim for sex discrimination. Wilkes v. Harrah s Casino Joliet, 2003 WL 21196268, *3
(N.D. Ill. 2003) ( If there were no claim of sex discrimination, plaintiff would not have a
claim for constructive discharge against Defendant. Thus, the constructive discharge
claim is inextricably linked to her claim of discrimination under Title VII . . . and
emotional in the context of an age discrimination claim on the basis that without the
allegation of age discrimination, plaintiff would have no basis for claiming liability for
negligent infliction of emotional distress. Cady v. Miss Page, Ltd., 2003 WL 1809468,
Against this backdrop, plaintiff claims that he wanted to go to the bathroom but
that he did not want to wait in line with the dispersing crowd to do so. He then claims
that various employees refused to provide him with his requested accommodation to
remain in his seat until the crowd had dispersed rather than wait in line for a
bathroom. See Complaint, ¶ 23. Because plaintiff s various tort claims for NIED
(Count VIII), assault and battery (Count III), false imprisonment (Count IV) and
negligence (Count V) are all inextricably linked to the alleged refusal afford him his
the accommodation that he allegedly requested, plaintiff s claims are preempted by the
IHRA. To recap, plaintiff has alleged that he was removed from the ballpark on
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account of his alleged disability. Put another way, suffered discrimination because
various defendants allegedly failed to provide him with his requested accommodation.
To paragraph Wilkes v. Harrah s Casino Joliet, if plaintiff did not suffer from disability
discrimination, plaintiff would not have a claim for NIED, assault and battery, false
imprisonment or negligence.
Plaintiff's claim for false imprisonment against the Sox defendants must be
the game to receive medical attention, after he had informed staff that he could stand
or walk, does not state a claim for false imprisonment.5 Second, and in the event that
the complaint as alleged does plead that an imprisonment occurred, the law does not
prohibit all such "seizures," only those that are unreasonable. The facts pled
freedom of liberty of movement without reasonable grounds for doing so. See Yang v.
Hardin, 37 F.3d 282, 286 (7th Cir. 1994) (police officer falsely imprisoned plaintiff
not every contact between a defendant (security guard, usher or police officer) and a
private citizen amounts to a false imprisonment. There are some contacts that are so
prohibited by the Fourth Amendment if it does not involve a seizure (or in the
5
Plaintiff has pled himself out of court by pleading facts that undermine the allegations
set forth in his complaint. Holman v. State of Indiana, 211 F.3d 399, 406 (7th Cir.2000), cert.
denied, 121 S.Ct. 191(2000); Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir.1999).
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appropriate case, a search)." Kernats v. O'Sullivan, 35 F.3d 1171, 1177 (7th Cir.
1994). Likewise, the fact that a plaintiff felt harassed or intimidated does not
implicate the Fourth Amendment. For example, in Arnold v. Truemper, 833 F.Supp.
678, 682-84 (N.D.Ill. 1993), one court held that "intimidation" by police officers was
not actionable under §1983. See also Lanigan v. Village of East Hazelcrest, Ill., 110
F.3d 467, 471 (7th Cir. 1997) ("of course, every official abuse of power, even if
constitutional deprivation . . . some such conduct may simply violate state tort law or,
the context of the Fourth Amendment, a seizure does not occur until an individual's
force or a suspect's submission to asserted authority. See, e.g., California v. Hodari D.,
Against this legal backdrop and the facts that have been pled here, plaintiff
cannot establish that his liberty was unlawfully restrained. While most traditional
plaintiff to remain at a location, the defendants in this case did no such thing. There
are no facts to suggest that plaintiff was precluded from leaving the park at any time.
Rather, it was not until plaintiff decided that he wanted to stay at the ballpark
(as opposed to using the restroom facilities prior the conclusion of the game and the
mass exodus of fans) that certain defendants removed plaintiff from the ballpark and
provided him with medical care after he complained that he could not walk or stand.
At most, plaintiff has insufficiently pled that the defendants erred in determining that
medical attention was prudent. See, e.g., Trevino v. Flash Cab Co., 272 Ill.App.3d
1022, 1031, 651 N.E.2d 723, 729 (1st Dist. 1995) (false imprisonment was not
established by allegations that plaintiff was ordered to leave defendants' cab some
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distance from her intended destination). In summary, plaintiff has failed to properly
claim that he was not free to leave, especially considering the fact that his decision to
stay at the stadium was dictated by his desire to use the restroom facilities at the
Markham, 310 F.3d 989, 995 (7th Cir. 2000) (in cases where a traditional analysis of
"seizure" yields no answer, the court must evaluate the circumstances under
McArthur, 531 U.S. 326, 331-34, 121 S.Ct. 946 (2001). In Wright, the plaintiff alleged
that he was seized, but this claim was rejected by the Court when it rejected plaintiff's
claim that he possessed a right to remain on his aunt's property in the face of her
unreasonable. By plaintiff's own admission, he expressed that he could not walk and
could not stand, and following these claims, plaintiff was presented for medical
attention. All other patrons had left the ballpark stands, yet he remained in his seat.
Plaintiff does not allege that the defendants made any "threat of force or arrest" and
the caselaw teaches that even in such cases, a claim will not lie. See, e.g.,
Schlessinger v. Salimes, 100 F.3d 519, 523 (7th Cir. 1986). Indeed, one could
reasonably interpret that if what plaintiff told park staff was true, presenting him for
medical attention was the only prudent course of action. If, on the other hand,
plaintiff did not appear to be telling the truth and was simply loitering, then he could
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reasonable. In either event, defendants' goal was for the plaintiff to leave the park,
WHEREFORE, for the foregoing reasons, defendants, Chicago White Sox, Ltd.,
ChiSox Corporation, At Your Service, Inc. and At Your Service LLC, respectfully
request an order from this Court dismissing plaintiff's complaint pursuant to FRCP
12(b)(6), or in the alternative and order, pursuant to Rule 12(e), requiring plaintiff to
plead his claims in a more definite manner as required by Rule 8(a) so that the
defendants may properly respond to such claims, and for any other relief that this
Respectfully submitted,
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CERTIFICATE OF SERVICE
James C. Vlahakis
HINSHAW & CULBERTSON, LLP
222 North LaSalle Street
Suite 300
Chicago, Illinois 60601-1081
(312) 704-3000
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